Commission is concerned that Samsung was seeking injunctions in the first place.

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Samsung's move to drop all requests for injunctions against Apple in Europe may not be enough to escape sanctions from the European Commission over the alleged abuse of its standards essential patents. EC Vice President Joaquín Almunia said during a press conference on Thursday in Brussels that his office will continue with its investigation against Samsung and will release a "statement of objections" within the coming weeks.

"Regarding the Apple-Samsung case, we will adopt the statement of objections very soon," Almunia said in response to a journalist question about the ongoing investigation. "I cannot anticipate the day, but just the period—in a very short period of time."

However, the patented technologies in question were promised to be licensed under fair, reasonable, and non-discriminatory (FRAND) terms. The EC's view—which may be shared by the FTC and DoJ in the US—is that seeking court-ordered injunctions based on standards essential patents is likely a violation of anti-competition laws.

The EC announced an active investigation into Samsung's potential abuses of its FRAND promises earlier this year. Almunia indicated that seeking injunctions was "one of the most important" objections that the Commission had with Samsung's tactics, suggesting it was not the only objection.

"We will continue to investigate this for sure," Almunia said. "We are very happy if these injunctions are withdrawn, but we will continue to investigate abuses which existed, according to our view, in the past."

I know that many people dislike Apple for its market success or even for its perceived arrogance. This should not negate our appreciation of the fact that Samsung is a near monopolist, responsible for approximately 20% of South Korean GDP. It has insulated itself from political scrutiny in South Korea through many questionable, possibly illegal activities, political contributions, and lobbying. At the same time, it has tried to create an image of itself here in the US as the scrappy underdog to Apple's Goliath.

Sadly, it is no better to blindly support a South Korean near monopolist than it is to support Apple. We need to keep our vision clear enough to oppose wrong-minded behavior in any of these companies, or we face a future world-wide oligopoly of the huge corporations.

Trying to prevent competitors from using FRAND patents is reprehensible and must be stopped. How we feel about the copying of (possibly) obvious patents is a slightly lesser issue.

I don't understand why it would be a sanctionable offence to ask a court to do something it can simply decline. If the court says no, no harm to competition; if the court says yes, well it must be legal, so no reason for punishment.

I don't understand why it would be a sanctionable offence to ask a court to do something it can simply decline. If the court says no, no harm to competition; if the court says yes, well it must be legal, so no reason for punishment.

I'd imagine that even hinting at legal action, whether you are able to take it or not, is potentially damaging to markets and competitors.

I don't understand why it would be a sanctionable offence to ask a court to do something it can simply decline. If the court says no, no harm to competition; if the court says yes, well it must be legal, so no reason for punishment.

I'm not even sure I understand exactly the point you're making here. The harm is done for the many months, or years, the products are out in the market before a judge, or jury makes a decision.

What people are having difficulty in understanding, and the courts as well, is that this isn't insignificant. We're talking about literally, hundreds of billions of dollars in sales in just a two year period. It could be trillions over a decade. So what happens is very important to the companies in question.

So if a company takes advantage of the slow legal process to get products out there, it could cripple other competitors. We've seen this before. In the late 1980‘s, Microsoft did this to their main competitors, DBase, WordPerfect and Lotus. By the time the federal court ruled against Microsoft, these companies had lost their competitive positions. The same thing happened later with Netscape.

So the courts frown upon companies that do this. It isn't simply that they will stop if the court says they must.

I don't understand why it would be a sanctionable offence to ask a court to do something it can simply decline. If the court says no, no harm to competition; if the court says yes, well it must be legal, so no reason for punishment.

I'd imagine that even hinting at legal action, whether you are able to take it or not, is potentially damaging to markets and competitors.

Not necessarily. If the companies are very large, the cost of lawsuits is simply part of the cost of doing business. You can be sure they take it into account when they budget. The cost of the suits can be high, but it's in the millions. When billions, and tens of billions are at stake, and even more, then that seems to be a minuscule enough amount. So it pays to do what you think will pull in that massive amount of money while you can, even if you think you will be forced to stop, and even pay a large fine. The fines are rarely large enough to prevent the same actions in the future.

You're going to trust the asshats who negotiated acta to do a proper investigation? lol

Um, point of order. Though ACTA may have been on the discussion table with those asshats present, the US and UK asshats are the ones that voted AGAINST it in the end ensuring it would never be. The idea got started by people from our nations, but other asshats screwed it up and we voted it down. Those asshats SAVED to from ACTA.

I don't understand why it would be a sanctionable offence to ask a court to do something it can simply decline. If the court says no, no harm to competition; if the court says yes, well it must be legal, so no reason for punishment.

I'd imagine that even hinting at legal action, whether you are able to take it or not, is potentially damaging to markets and competitors.

Right, because being found guilty THREE TIMES of price fixing massive international technolgoy markets for periods of 20+ years, bribing government officials, embezzeling money, stealing technology, have all done so much damage to Samsung's image as a company....

I guess it seems to me that if someone's not paying for FRAND patents, then injuctions are a reasonable way of forcing them to pay (well, I think standards ought be patent-free, but if they must be patented...). If there's a dispute over pricing, then eventually the courts will have to come in, so either they say "no injunctions and we'll set a price", or they say the offered price is fair, in which case surely and injunction is proper if the licensee still refuses to pay (otherwise how to collect payments from the intransigent?).

What happens in South Korea, by South Korean companies is South Korea's business first. We need to investigate what sort of monopolistic and potentially illegal things companies like Apple are doing in other markets and from where they source their real labor. Apple's real labor is Chinese, Thai, Vietnamese, or some such national without the labor safeguards American sitting in America enjoy.

Apple is an American company, we should hold them to the standards of American law. It is not just business as usual for Apple when the likes of Cook strong arm suppliers with bought out political influence and bribery. That is the sort of business practice that has made Apple this profitable, and they have had a very good PR machinery to whitewash their sins from their market, the US and the EU customers. The onus is on the people and governments of the US and EU to first clean the practices of their own companies, then go after those that belong to other nations. But then Euro-American over-reach has been the norm for the past couple of centuries. It is only natural that the rest of the world has gotten down to playing the same dirty tricks that we taught them.

Companies like Apple, Walmart, the Big Oil majors, have been doing these things both in their home turfs (in the US it is called lobbying) and overseas (where it is still called bribery). It is time we cleaned our own act before going after others, over whom our only control is via the fact that we are their customers. Unless we do that, we can just expect others to do what we do, and expect blowbacks from time to time.

I guess it seems to me that if someone's not paying for FRAND patents, then injuctions are a reasonable way of forcing them to pay (well, I think standards ought be patent-free, but if they must be patented...). If there's a dispute over pricing, then eventually the courts will have to come in, so either they say "no injunctions and we'll set a price", or they say the offered price is fair, in which case surely and injunction is proper if the licensee still refuses to pay (otherwise how to collect payments from the intransigent?).

If the pricing is fair, it will be paid. It's when the holder is asking for fees that are several times (in some cases, hundreds of times) more than what they are being offered for elsewhere, that the user balks. So, patents that are going for fractions of a penny a device in those vast pools, are seeing demands of up to 2.4% of the price of the device when the user is either Apple or Microsoft. Both companies would be crazy to pay those outlandish prices.

What happens in South Korea, by South Korean companies is South Korea's business first. We need to investigate what sort of monopolistic and potentially illegal things companies like Apple are doing in other markets and from where they source their real labor. Apple's real labor is Chinese, Thai, Vietnamese, or some such national without the labor safeguards American sitting in America enjoy.

Apple is an American company, we should hold them to the standards of American law. It is not just business as usual for Apple when the likes of Cook strong arm suppliers with bought out political influence and bribery. That is the sort of business practice that has made Apple this profitable, and they have had a very good PR machinery to whitewash their sins from their market, the US and the EU customers. The onus is on the people and governments of the US and EU to first clean the practices of their own companies, then go after those that belong to other nations. But then Euro-American over-reach has been the norm for the past couple of centuries. It is only natural that the rest of the world has gotten down to playing the same dirty tricks that we taught them.

Companies like Apple, Walmart, the Big Oil majors, have been doing these things both in their home turfs (in the US it is called lobbying) and overseas (where it is still called bribery). It is time we cleaned our own act before going after others, over whom our only control is via the fact that we are their customers. Unless we do that, we can just expect others to do what we do, and expect blowbacks from time to time.

Are you nuts? What are you talking about? Apple is the only company that IS doing anything about it. Keep in mind that the same companies that manufacture for Apple also manufacture for Dell, HP, Microsoft, Samsung, and many others. None of them are doing anything. HP dismissed the entire problem in the last shareholder's meeting, out of hand. Whatever you might want to think, Dell is a $60 billion plus company, and HP is a $120 billion plus company. Microsoft is one of the richest in the world, and Samsung, one of the worst.

Apple is trying to move some production back here. Give them some credit for that.

The real onus is for governments of these other countries to clean up their own acts. Until that happens. Most companies will take advantage of what those laws allow.

Additionally, it's consumers, companies and governments that want to pay the least for their products that are responsible for much of this. When you look at the price of goods, and see the ones that are the cheapest selling well, and even the most, then you can blame that attitude for why they are being made elsewhere, and the conditions under which they are being made.

So look to yourself first. Every time you buy a product made in one of these places, you are encouraging the activity you SAY you despise, but actually applaud.

I guess it seems to me that if someone's not paying for FRAND patents, then injuctions are a reasonable way of forcing them to pay (well, I think standards ought be patent-free, but if they must be patented...). If there's a dispute over pricing, then eventually the courts will have to come in, so either they say "no injunctions and we'll set a price", or they say the offered price is fair, in which case surely and injunction is proper if the licensee still refuses to pay (otherwise how to collect payments from the intransigent?).

If the pricing is fair, it will be paid. It's when the holder is asking for fees that are several times (in some cases, hundreds of times) more than what they are being offered for elsewhere, that the user balks. So, patents that are going for fractions of a penny a device in those vast pools, are seeing demands of up to 2.4% of the price of the device when the user is either Apple or Microsoft. Both companies would be crazy to pay those outlandish prices.

You are completely full of crap. Apple's winning jury found that Samsung had done NOTHING to abuse its FRAND responsibilities. So why hasn't Apple paid? Motorola stated in court filings that Apple has not met the basic minimums to get FRAND licensing from them. In addition, a court was ready to set a fair price and Apple walked away. You statement that Apple will pay if the price is fair falls flat on its face. Why? Because this isn't about fees or patents, its a war on platforms.

Presumably the EU will look at extenuating circumstances, such as Apple going "thermonuclear"? If the only defence you have lies in FRAND patents, then it seems logical to use them - especially when the other party can't agree on terms but continues to use the technology covered by those patents.

Edit: Just to clarify, I think patents themselves should be abolished - but if companies are allowed to use them in the non-competitive ways they have been used in recent years then the same rules should apply to all. FRAND seems to be a get-out-of-jail-free card for entities that don't participate in standard setting.

I would also like to bring up that Microsoft is in favor of asking for injunctions for FRAND patents. They told the FTC so in a letter. So kindly remove Microsoft from your poor exploited companies list. They just don't have any FRAND patents to use in this instance.

You're going to trust the asshats who negotiated acta to do a proper investigation? lol

Yes, I do.

Because I believe they honestly think the profits of large corporations is more important than the freedom/liberty of ordinary people like you and me. Just because I disagree with the EU on one specific issue doesn't mean I think they cannot be trusted with other unrelated issues.

This case has nothing to do with ACTA, this is two large corporations doing things that hurt each other. I think the EU is likely to act appropriately, as they have a history of doing in cases like this.

Vycia wrote:

I don't understand why it would be a sanctionable offence to ask a court to do something it can simply decline. If the court says no, no harm to competition; if the court says yes, well it must be legal, so no reason for punishment.

They didn't just ask a court to do something, they also asked Apple to do something or else they would take it to court.

I think just threatening an injunction should be enough to face stiff penalties. You don't have to kill someone to get in trouble. Even just threatening to kill them is enough.

Samsung is one of the largest corporations in the world. It stands to reason they also have one of the best legal teams in the world. Chances are Samsung's legal team understands patent law better than any judge. If it is illegal in europe to get an injunction based on a frand patent, then samsung's legal team would know that.

Presumably the EU will look at extenuating circumstances, such as Apple going "thermonuclear"? If the only defence you have lies in FRAND patents, then it seems logical to use them - especially when the other party can't agree on terms but continues to use the technology covered by those patents.

No it's not logical to reneg on a government regulated standards agreement, for any reason. Better not to have made the commitment at all. Courts can always force a SEP infringer to pay you and injunctions are only allowed for cases of irreparable harm, like damage to reputation or loss of market share. They are not allowed where monetary relief is enough. When you are offering patents to a standard and agree to license anyone on the planet under FRAND terms, by definition there can be no harm from any infringement that money won't fix.

Quote:

FRAND seems to be a get-out-of-jail-free card for entities that don't participate in standard setting.

Are you asserting Apple doesn't contribute patents to standards like LTE, WiFi, or H.264 on FRAND terms?

Right, because being found guilty THREE TIMES of price fixing massive international technolgoy markets for periods of 20+ years, bribing government officials, embezzeling money, stealing technology, have all done so much damage to Samsung's image as a company....

I'm not sure I've got the sense right between what I take as the original poster's earnestness and your sarcasm.

But by common consensus, Samsung's success is an object of national pride, quite a bit more so than the love/OK/meh/hate that gets expressed here about Apple. Prosecution of iconic figures — e.g., Joe Paterno—does happen, but is swimming upstream. In part, I suspect the unconscious rationale is, “if [hero-figure X] is doing Y, then Y must be OK, because X needs to do it to continue being great.”

Some of us see that same unconscious rationale in our own (and of course, especially others') behavior—maybe, it's even common. The subconscious takes its positions long before our conscious brains can get around to a good rationalization for them.

I would also like to bring up that Microsoft is in favor of asking for injunctions for FRAND patents. They told the FTC so in a letter. So kindly remove Microsoft from your poor exploited companies list. They just don't have any FRAND patents to use in this instance.

Per the Sagan Rule, (exceptional claims need extraordinary evidence), a citation is needed.

Like other leading high-tech firms, Microsoft regularly contributes to the development of industry standards. Industry standards are vitally important to the development of the Internet and to interoperability among mobile devices and other computers. The international standards system works well because firms that contribute to standards promise to make their essential patents available to others on fair, reasonable and nondiscriminatory terms. Consumers and the entire industry will suffer if, in disregard of this promise, firms seek to block others from shipping products on the basis of such standard essential patents.

Microsoft’s approach is straight-forward:

Microsoft will always adhere to the promises it has made to standards organizations to make its standard essential patents available on fair, reasonable and nondiscriminatory terms.

This means that Microsoft will not seek an injunction or exclusion order against any firm on the basis of those essential patents.

This also means that Microsoft will make those essential patents available for license to other firms without requiring that those firms license their patents back to Microsoft, except for any patents they have that are essential to the same industry standard.

Microsoft will not transfer those standard essential patents to any other firm unless that firm agrees to adhere to the points outlined above.

Or perhaps you don't have anything other than some fact-free attitude.

I would not dream of making up stupid BS about Microsoft. They are far too stupid and full of BS on their own...

From groklaw:

Taken from Motorola's response in Motorola vs Microsoft over injunctions, which was denied. Below the quote is more information regarding the source and nature of Microsoft's letter to the FTC.

" Not only do Microsoft’s arguments contradict the holding of eBay, they also directly contradict the submission Microsoft made in a non-litigation context to the Federal Trade Commission. In a June 2011 letter to the FTC, Microsoft stated explicitly that:

"[T]he existence of a RAND commitment to offer patent licenses should not preclude a patent holder from seeking preliminary injunctive relief or commencing an action in the International Trade Commission just because the patent holder has made a licensing commitment to offer RAND-based licenses in connection with a standard.""

I guess it seems to me that if someone's not paying for FRAND patents, then injuctions are a reasonable way of forcing them to pay (well, I think standards ought be patent-free, but if they must be patented...). If there's a dispute over pricing, then eventually the courts will have to come in, so either they say "no injunctions and we'll set a price", or they say the offered price is fair, in which case surely and injunction is proper if the licensee still refuses to pay (otherwise how to collect payments from the intransigent?).

If the pricing is fair, it will be paid. It's when the holder is asking for fees that are several times (in some cases, hundreds of times) more than what they are being offered for elsewhere, that the user balks. So, patents that are going for fractions of a penny a device in those vast pools, are seeing demands of up to 2.4% of the price of the device when the user is either Apple or Microsoft. Both companies would be crazy to pay those outlandish prices.

You are completely full of crap. Apple's winning jury found that Samsung had done NOTHING to abuse its FRAND responsibilities. So why hasn't Apple paid? Motorola stated in court filings that Apple has not met the basic minimums to get FRAND licensing from them. In addition, a court was ready to set a fair price and Apple walked away. You statement that Apple will pay if the price is fair falls flat on its face. Why? Because this isn't about fees or patents, its a war on platforms.

Oh, go away. You don't know what this is all about, and you don't know what you are talking about. Motorola, oh, excuse me, Google, making a statement of fact? Please! Give me a break! It isn't Apple that being looked into for abusive practices. It's Google.

I would also like to bring up that Microsoft is in favor of asking for injunctions for FRAND patents. They told the FTC so in a letter. So kindly remove Microsoft from your poor exploited companies list. They just don't have any FRAND patents to use in this instance.

Post that letter, will you? Apple and Microsoft both stated very directly, that they would NOT, under any curio stances seek an injunction for any FRAND patents. Google, on the other hand, has stated that their policy is what Motorola's was. The government here has stated very clearly that they don't trust Google's intentions.

And both Apple and Microsoft have plenty of FRAND patents.

Don't post crap, when you don't know what you're talking about.

This is just one of many problems Motorola/Google is finding themselves in.

I would not dream of making up stupid BS about Microsoft. They are far too stupid and full of BS on their own...

From groklaw:

Taken from Motorola's response in Motorola vs Microsoft over injunctions, which was denied. Below the quote is more information regarding the source and nature of Microsoft's letter to the FTC.

" Not only do Microsoft’s arguments contradict the holding of eBay, they also directly contradict the submission Microsoft made in a non-litigation context to the Federal Trade Commission. In a June 2011 letter to the FTC, Microsoft stated explicitly that:

"[T]he existence of a RAND commitment to offer patent licenses should not preclude a patent holder from seeking preliminary injunctive relief or commencing an action in the International Trade Commission just because the patent holder has made a licensing commitment to offer RAND-based licenses in connection with a standard.""

I would not dream of making up stupid BS about Microsoft. They are far too stupid and full of BS on their own...

From groklaw:

Taken from Motorola's response in Motorola vs Microsoft over injunctions, which was denied. Below the quote is more information regarding the source and nature of Microsoft's letter to the FTC.

" Not only do Microsoft’s arguments contradict the holding of eBay, they also directly contradict the submission Microsoft made in a non-litigation context to the Federal Trade Commission. In a June 2011 letter to the FTC, Microsoft stated explicitly that:

"[T]he existence of a RAND commitment to offer patent licenses should not preclude a patent holder from seeking preliminary injunctive relief or commencing an action in the International Trade Commission just because the patent holder has made a licensing commitment to offer RAND-based licenses in connection with a standard."

Here's Microsoft's official policy page supporting industry standards and FRAND, published Feb 8, 2012. The simplest explanation between the two contradictory statements is that sometime between June 2011 and Feb 2012, Microsoft saw which way the wind was blowing—the term "FRAND abuse" had entered public debate over patents—and decided to get out in front of it. My impression is that before the smartphone wars Motorola and Samsung (and perhaps Microsoft) were regularly getting away with FRAND-abuse due to the utter lack of transparency in, or oversight of, SEP licensing negotiations and the lack of any public attention. Being challenged in these high profile court cases, it's now a major issue that even anonymous cowards on internet fora are getting hot and bothered about, and it's only a matter of time before the courts and regulators clarify the rules and laws—what we're witnessing right now. A good thing going forward if the abusers can no longer get away with it, though I'm doubtful any of them will get much more than a slap on the wrist for their past practices.

I guess it seems to me that if someone's not paying for FRAND patents, then injuctions are a reasonable way of forcing them to pay (well, I think standards ought be patent-free, but if they must be patented...). If there's a dispute over pricing, then eventually the courts will have to come in, so either they say "no injunctions and we'll set a price", or they say the offered price is fair, in which case surely and injunction is proper if the licensee still refuses to pay (otherwise how to collect payments from the intransigent?).

If the pricing is fair, it will be paid. It's when the holder is asking for fees that are several times (in some cases, hundreds of times) more than what they are being offered for elsewhere, that the user balks. So, patents that are going for fractions of a penny a device in those vast pools, are seeing demands of up to 2.4% of the price of the device when the user is either Apple or Microsoft. Both companies would be crazy to pay those outlandish prices.

You are completely full of crap. Apple's winning jury found that Samsung had done NOTHING to abuse its FRAND responsibilities. So why hasn't Apple paid? Motorola stated in court filings that Apple has not met the basic minimums to get FRAND licensing from them. In addition, a court was ready to set a fair price and Apple walked away. You statement that Apple will pay if the price is fair falls flat on its face. Why? Because this isn't about fees or patents, its a war on platforms.

Oh, go away. You don't know what this is all about, and you don't know what you are talking about. Motorola, oh, excuse me, Google, making a statement of fact? Please! Give me a break! It isn't Apple that being looked into for abusive practices. It's Google.

So give me an alternate reason why Apple would refuse to go through binding arbitration with Motorola if all they are looking for is a fair price to be set? There is no reason that makes sense unless its that they really aren't worried about the cost. They want to use their lawsuits as a hammer on Android. But if you have a better reason, I'm all ears.

Its the same thing with Microsoft. Microsoft was shaking down all Android users for bogus patents. Barnes and Noble decided to fight back using patent invalidation, and Microsoft settles, paying B&N $300 million in cash. Motorola attacked with its FRAND patents that Microsoft had never paid for. Guess they should have gone the same route as B&N but hindsight is 20/20. I don't see how you can defend Microsoft's pricing for pretty bogus patents and attack Motorola for their pricing on SEPs.

Personally, I dont think FRAND patents should be used the way they are, but that doesn't mean that what Motorola or Samsung is doing violates any agreement that they signed when the standard was made. I don't think its fair for the government to get involved in the process after the fact. If they want to set rules for new standards, so be it.

The European Commission has informed Samsung of its preliminary view that Samsung's seeking of injunctions against Apple in various Member States on the basis of its mobile phone standard-essential patents ("SEPs") amounts to an abuse of a dominant position prohibited by EU antitrust rules.

Apparently Samsung withdrew their injunction demands in Europe a little too late. There's also a Q&A Memo published with the PR has some other interesting bits:

Quote:

How did this case begin?The Commission initiated the case on its own initiative.

What is the relevance of the fact that Apple first sought injunctions against Samsung?Apple launched injunctions against Samsung on the basis of non-SEPs, i.e. patents for which no commitment to license on FRAND terms had been given in a standardisation context. The Commission's case derives from the specific standardisation context and the associated commitment to license SEPs on FRAND terms.

What about other cases relating to SEPs?The Commission is investigating a number of other cases relating to SEPs but cannot divulge details at this stage. In April 2012 the Commission opened proceedings against Motorola (see IP/12/345).

Is the Commission liaising on these issues with the antitrust authorities in the United States?The Commission is in close contact with both the US Department of Justice and the US Federal Trade Commission on issues relating to SEPs.

So give me an alternate reason why Apple would refuse to go through binding arbitration with Motorola if all they are looking for is a fair price to be set? There is no reason that makes sense unless its that they really aren't worried about the cost.

Nonsense. Why would Apple want to give up their right to an appeal? Especially when regulators and courts are just starting to weigh in on what "FRAND abuse" means. I'll bet when all is said and done, Motorola's FRAND rates are going to be a tiny tiny tiny fraction of what they're demanding today, certainly not 2.25% of end user device price. A year from now the odds favor Apple getting a far better FRAND rate, whether set by a court or in direct negotiations, than they would today.

Quote:

Its the same thing with Microsoft. Microsoft was shaking down all Android users for bogus patents. Barnes and Noble decided to fight back using patent invalidation, and Microsoft settles, paying B&N $300 million in cash.

Oh please. Barnes and Noble's been going down the financial tubes, had no cash to pay, and sold a stake in their business to MS along with a cash infusion in order to settle and just stay alive. That you characterize that deal as some kind of payoff and appeasement and loss for Microsoft is hilarious. Microsoft just got a significant stake in the e-book business at a fire sale price.

Quote:

Personally, I dont think FRAND patents should be used the way they are, but that doesn't mean that what Motorola or Samsung is doing violates any agreement that they signed when the standard was made. I don't think its fair for the government to get involved in the process after the fact. If they want to set rules for new standards, so be it.

The European Commission disagrees with you, as do the US Courts so far, and very likely the ITC and FTC will be following suit soon.

So give me an alternate reason why Apple would refuse to go through binding arbitration with Motorola if all they are looking for is a fair price to be set? There is no reason that makes sense unless its that they really aren't worried about the cost. They want to use their lawsuits as a hammer on Android. But if you have a better reason, I'm all ears.

Apple purchased the chips from Qualcomm. Qualcomm already paid the patent license fee for the chips. Motorola then decided that Qualcomm license would not apply to Apple specifically after the fact. So Apple is refusing to pay twice for the same thing.

So give me an alternate reason why Apple would refuse to go through binding arbitration with Motorola if all they are looking for is a fair price to be set? There is no reason that makes sense unless its that they really aren't worried about the cost. They want to use their lawsuits as a hammer on Android. But if you have a better reason, I'm all ears.

Apple purchased the chips from Qualcomm. Qualcomm already paid the patent license fee for the chips. Motorola then decided that Qualcomm license would not apply to Apple specifically after the fact. So Apple is refusing to pay twice for the same thing.

If that was the case, Apple wouldn't have gone to court asking for arbitration. They would have gone to court arguing that they already paid the fee. Offering to pay again if its the price they want doesn't make sense if you are correct. Apple wouldn't volunteer to pay twice.

Oh please. Barnes and Noble's been going down the financial tubes, had no cash to pay, and sold a stake in their business to MS along with a cash infusion in order to settle and just stay alive. That you characterize that deal as some kind of payoff and appeasement and loss for Microsoft is hilarious. Microsoft just got a significant stake in the e-book business at a fire sale price.

From the perspective of hurting Android, I would say it was a loss. Both companies came out with something they wanted. And this seems to have helped B&N more than hurt them, so I wouldn't say Microsoft won. Maybe say it was a draw? There are probably some confidential points that might make a difference.

The European Commission disagrees with you, as do the US Courts so far, and very likely the ITC and FTC will be following suit soon.

The bylaws and contract that industry created when implementing these standards did not including anything about a ban on injunctive relief. Changing it after the fact is basically breeching the contract. However, I do see one way to make this fair to all parties. Ban injunctions on SEPs. However, to sue any company over patents, you must have settled any FRAND patent issues first. So once Microsoft has paid Motorola, based on either negotiations or arbitration, then it can sue over Motorola's alleged patent infringement on non-SEP patents. That keeps everyone on the up and up. Apple and Microsoft should not have been allowed to go for years without paying for the patents they use.

So give me an alternate reason why Apple would refuse to go through binding arbitration with Motorola if all they are looking for is a fair price to be set? There is no reason that makes sense unless its that they really aren't worried about the cost. They want to use their lawsuits as a hammer on Android. But if you have a better reason, I'm all ears.

Apple purchased the chips from Qualcomm. Qualcomm already paid the patent license fee for the chips. Motorola then decided that Qualcomm license would not apply to Apple specifically after the fact. So Apple is refusing to pay twice for the same thing.

If that was the case, Apple wouldn't have gone to court asking for arbitration. They would have gone to court arguing that they already paid the fee. Offering to pay again if its the price they want doesn't make sense if you are correct. Apple wouldn't volunteer to pay twice.

Err, which is it? Did Apple refuse arbitration, or did they request it? "Whichever one helps your point," it would seem…

If that was the case, Apple wouldn't have gone to court asking for arbitration. They would have gone to court arguing that they already paid the fee.

They have gone to court over this, it's a separate trial that will happen in 2013.

Quote:

The bylaws and contract that industry created when implementing these standards did not including anything about a ban on injunctive relief.

The contract included FRAND terms. Otherwise, antitrust regulators would never allow corporations to create a standard by colluding. The EC seems to believe that Samsung has refused to license its SEPs to Apple on FRAND terms.

Quote:

Changing it after the fact is basically breeching the contract.

Nope, the EC is coming down on Samsung for breeching their FRAND contract.

The European Commission disagrees with you, as do the US Courts so far, and very likely the ITC and FTC will be following suit soon.

The bylaws and contract that industry created when implementing these standards did not including anything about a ban on injunctive relief. Changing it after the fact is basically breeching the contract. However, I do see one way to make this fair to all parties. Ban injunctions on SEPs. However, to sue any company over patents, you must have settled any FRAND patent issues first. So once Microsoft has paid Motorola, based on either negotiations or arbitration, then it can sue over Motorola's alleged patent infringement on non-SEP patents. That keeps everyone on the up and up. Apple and Microsoft should not have been allowed to go for years without paying for the patents they use.

First, thanks for the earlier link to the (apparently, now-obsolete) Microsoft policy as enunciated in their letter to the FTC.

Second, this quote from their June, 2011 letter illuminates their logic:

Microsoft, commenting to the FTC wrote:

The notion that “patent hold-up” is a substantial problem that should be addressed by government action seems to stem from a largely theoretical analysis of the situation. If a patent holder can charge implementers more than a reasonable royalty because those implementers are (perhaps) “locked into” the standard, then is it not likely that it would take advantage of this opportunity?

We believe that this reasoning greatly over-simplifies—and obscures—the realities of standards-related patent licensing. How any individual company will approach patent licensing will depend on many factors…As a result, we respectfully suggest that a simplified and theoretical approach to defining “patent hold-up” may not sufficiently map to complex marketplace realities. It may pull in what are essentially routine business negotiations between two parties. These negotiations almost always include considerations beyond the proposed licensing terms for just the essential claims in a standard (and just the royalty element of any such terms). Many companies question whether these types of business negotiations should be labeled as “ptaent [sic] hold-up” and scrutinized by regulators. We believe that there is an important difference between intentional or deceptive conduct in connection with patents that read on standards and routine bilateral disagreements over licensing terms for the use of patented technology.

In the former context, there seems to be a dearth of examples of actual patent hold-up with regard to the essential patent claims reading on a standard. Microsoft has never been accused of patent hold-up in this regard, nor has it accused any other company of such behavior.

It would appear that a significant part of Microsoft's 2011 position was due to its belief that “there seems to be a dearth of examples of actual patent hold-up.” Of course, this may simply be rationalization as part of some larger advantage they were seeking then.

Nonetheless, I think that the recent request for injunctions based on SEPs could well, in Microsoft's view, have stepped outside the pale of ordinary negotiations. We see many negotiations involving various cellphone standards and non-standard patents, and relatively few of these have gone to trial. Of course, it appears that Motorola only asserted SEPs against Microsoft in the last year or two; Microsoft had obviously paid to the various patent pools that had presented demands for h.264 and wifi.

If you are asserting that Microsoft has suddenly engaged in bad behavior regards SEPs, it'd be interesting to know why they suddenly changed their position about “fairness” and especially the fair handling of claims, ONLY (?) after Motorola presented claims for huge sums vis-à-vis previous SEP license fees.

In any case, it appears that Microsoft's current evaluation is that injunctions around SEPs are unnecessary and a threat to smooth licensing. Perhaps when there is a better consensus about what FRAND means, it'll be easier to decide what is the appropriate disposition is when a would-be licensee refuses the terms offered.